A string of comments on my post about Faisal Shahzad’s pre-arraignment cooperation with the government disturbed me greatly.  My initial reaction was that no one who would say such things, believe such things, had any business defending a person accused of a crime, and I let the commenter have it with both barrels. 

I then calmed down and realized that his attitude was likely shared by many who sit at the table farthest from the jury, and it would be more helpful if I explained my views about things that should never need explanation.  Since I have the keys to this place, I have the ability to go back in time, make my initial reaction disappear and take a mulligan.  The comment  that got me started was:

What “cherished rights” are those? The right to be tried by a jury? How does that work out, usually?

The right to have your guilt proven beyond a reasonable doubt? A jailhouse snitch is usually good enough.

The right not to have to testify with no adverse inference being drawn? Come on.

Don’t tell me you don’t take all this into account when advising your clients.

When your client has more or less told you he’s guilty, when they have him on wiretaps and video doing the crime or confessing to it, what are your options? If it’s a drug sale you play the jury nullification argument. Good luck.

You fight them. Good. Someone has to.

I won’t countenance fabricating allegations. But the prosecutors are sometimes clueless. Is it a bad thing to help straighten them out if you can? How many innocents are not tried or even charged because the prosecutors got accurate information from a cooperating witness who might otherwise have been a defendant?

This is a tough business and a lot of tough decisions have to be made. I’m not saying you don’t have a point, but I just think you might be painting with too broad a brush.

The main body of the comment challenges the notion that there’s any alternative for a lawyer to advising his client to be a rat.  The penultimate paragraph is a justification for snitching, an argument that snitches save innocent people by giving prosecutors accurate information about people who they believe to be criminals.  I’ve yet to see that highlighted in a 5K1.1 letter as a basis for substantial cooperation. 

The came this comment :

It’s almost always impossible to defend from a position of strength. The deck is too stacked. Being ready, willing and able to go to trial has nothing to do with it.

In my opinion there’s only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution’s case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don’t say another word about it until you close.

But note that to play that game you must appear weaker to your opponents than you actually are. Indeed that is part of the reason it works. You really are defending from a position of strength, but others perceive the opposite.

And I said only that you can RELIABLY win this way. Even with something like that, it’s not a sure thing, the institutional momentum in favor of conviction being powerful enough to override even the most solid proof coming from a criminal defendant, even as the most laughable evidence will be credited if it comes from the prosecutor.

Still, I’m glad you get good results being combative from the beginning. If you can reliably win that way that’s great, with one caveat: I don’t believe the adversarial approach applies to anything other than the trial itself. If it comes down to a trial, both sides have to try to win. Outside of that context, two lawyers should be able to discuss the matter sub judice like normal, intelligent and well-informed human beings educated in the relevant law. A power game from beginning to end generally favors the more powerful side – that is, the government, the insurance company, the bank, etc. – in my experience, though I guess yours may be different.

There are many in the ranks of criminal defense lawyers who find the idea of expecting to win, or at least exceed expectations, too difficult if not impossible to accomplish.  The deck is too stacked, they say.  It’s too hard.  It can’t be done.  No one wins.  They aren’t so foolish as to tell this to the defendant when they put their hand out for the money, but in their head, the calculate out the time needed to put on a dog and pony show at a couple of court appearances and then a few meetings at the United States Attorney’s office. 

The client believes he is paying a lawyer for a defense.  The lawyer knows that the client is paying for surrender.  If he can chop off a couple of months, maybe a few years in exchange, the lawyer believes he’s earned his keep.  The client doesn’t actually get a vote in the matter, since he won’t learn of the capitulation until after the money has been turned over.

The lawyer rationalizes his conduct by believing that he knows better than the naive defendant, and that the few crumbs he may get the defendant are better than nothing at all.  Plus, he’s paid for a defense, which is far more time-consuming and difficult than cooperation, which puts him substantially ahead of the game financially.  It’s a win-win, as far as the lawyer is concerned.

The lawyer’s belief is grounded in low expectations.  He expects to lose, to fail, and goes into it with the intention of surrendering his client’s cause.  His expectations will always be met.

My response to the offending comment, after revisiting it, was intended to be helpful:

I don’t know if you’re a criminal defense lawyer, but I don’t think you’ve understood what I’m saying.  It has nothing to do with being combative, though there are times when that’s necessary and we need to be capable of combat when it’s called for.  I’m talking about going into every case with the attitude that I’m going to win, I’m going to find a way to achieve victory.  It’s using every weapon available, turning over every rock, looking for every crack, thinking and rethinking every approach, to find a way to prevail.

We rarely get cases where the facts are in our favor, or there’s a smoking gun piece of defense evidence.  So what?  That’s not what we do.  We take our cases as we find them, and still do everything possible to win. 

But if you start out believing that it’s a lost cause, you will certainly prove yourself correct.  The deck is always stacked against us.  That’s why we have to be better than the other side, smarter, faster, more thorough, and always more dedicated.  Being ready, willing and able has everything to do with it.  Being certain that you can’t possibly win is the surest path to losing.

By no means do I suggest that any lawyer, myself included, can win every case.  But I have never gone into a case, told a defendant that I would be his lawyer and accepted a fee, without believing that I would find a way to defend him. 

It’s so easy to fall into professional depression, to come to the belief that there’s nothing to be done, that conviction was going to be the outcome no matter what, and therefore efforts to win were futile.  Too many feel as if they are banging their heads against a wall, and decide that capitulation is the only rational course.  The deck is stacked against them, against us.  Why bother to try?  Why persist in the naive dream that there’s a chance.  There’s no chance.  Give up.  Just cut your losses off the top and move on to the next legal fee.

If you feel this way, you should not be a criminal defense lawyer.  You cannot do your job of providing a zealous defense if you believe that you will inevitably fail.  You cannot deceive your client by telling him that you will represent him when all you plan to do is babysit him through the cooperation process.  When a defendant looks to you to ensure he receives those cherished rights that you ridicule, that you will strive to find that crack in the overwhelming case, before concluding that there is no hope, you cannot look him in the eye and tell him you will when you won’t.  You’re lying to your client, if not yourself.

And you’re wrong.  It is not hopeless.  There’s no assurance that any lawyer, no matter how good or how much he’s paid, will find that crack in the prosecution’s case.  But it happens, and it happens all the time.  It may not produce an outright acquittal and heartfelt apology from the F.B.I., but it may well produce substantially reduced charges, loss valuations, suppression, whatever.  The lawyer willing to risk his ego and effort will find the crack.  The lawyer with low expectations will never find it.

The lawyer with great expectations may well fail to meet them.  The lawyer with low expectations will be a huge success as he will meet them every time.

Mark Bennett has also written about these comments, and you should read Mark’s thoughts if you haven’t already.